Introduction

This chapter is Contributed by staff of Tenancy WA and current to December 2018.

1.1 Currency of the Manual

This Manual contains legislation and cases up to December 2018.

1.2 Purpose of the Manual

There is significant demand for tenancy advice and assistance in Western Australia (WA). 30% of Western Australians rent their home.

The vast majority of residential tenancy matters are heard in the Magistrates Court. Unlike most of the other States and Territories, WA does not publish residential tenancy decisions, except for the very few which are appealed to superior courts.(1) Prior to this publication, there was no authoritative and comprehensive text or resource providing commentary on WA residential tenancy law and practice. As a result of all this, it is difficult for tenants and lessors alike to find out how the courts decide residential tenancy matters, and the way in which relevant legislation is applied.

The purpose of this publication is to enhance front line services to tenants in WA by developing an online WA-specific residential tenancies law and practice resource. The resource is intended for use by tenant advocates, legal practitioners and community workers. It is also hoped that it will be useful for tenants and lessors who are unrepresented, as well as real estate agents.

1.3 The Residential Tenancies Act 1987 (WA)

The purpose of the Residential Tenancies Act 1987 (WA) as per the long title is ‘to regulate the relationship of lessors and tenants under residential tenancy agreements, to consequently amend certain Acts(2), and for connected purposes.’

The Residential Tenancies Regulations 1989 (WA) are made by the Governor for the purpose of ‘prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of this Act.’(3) Without limiting the generality of this, regulations may ‘provide for the practice and procedure to be followed, and the payment of fees, in relation to proceedings under’ the Residential Tenancies Act 1987 (WA), and ‘prescribe penalties not exceeding $5 000 for breach of, or non-compliance with, any regulation.’(4)

1.3.2. Administration

Section 7A requires the Minister(7) responsible for administering the Act(8) (currently the Minister for Commerce and Industrial Relations) to designate a person as the Commissioner for the purposes of the Residential Tenancies Act 1987 (WA). The person chosen must be an executive officer of the Department of Mines, Industry Regulation and Safety. An ‘executive officer’ is a chief executive officer or senior executive officer, as defined in s 3(1) of the Public Sector Management Act 1994 (WA).(9) Under s 7A(2) ‘[t]he Commissioner may be referred to by a title specified by the Minister by notice published in the Gazette.’ By notice in the Gazette, the former Minister for Consumer Protection designated the Executive Director of Consumer Protection, to be the Commissioner, to be known as the ‘Commissioner for Consumer Protection’.(10)

Section 8 sets out the functions of the Commissioner for the purposes of the Residential Tenancies Act 1987 (WA), as follows:

(a) the investigation of and conduct of research into matters relating to the interests of parties to residential tenancy agreements generally or any particular party or parties;_

(b) the publication of reports and the dissemination of information on matters relating to the interests of parties to residential tenancy agreements;

(d) the investigation, upon the complaint of a party to a residential tenancy agreement or otherwise, of an offence against this Act or of an infringement of a party’s rights arising out of any residential tenancy agreement and the taking of action by negotiation, prosecution of such offence or otherwise;

(e) the making of reports to the Minister on matters referred to the Commissioner by the Minister and matters of importance investigated by the Commissioner, whether referred to the Commissioner by the Minister or not.

Under s 9(1), the Commissioner has the power to institute or defend legal proceedings, or assume the conduct of proceedings already commenced ‘with a view to enforcing or protecting the rights of the party in relation to any infringement or suspected infringement by that other person of those rights or of any of the provisions of this Act or other law relating to the interests of such parties.’ The Commissioner must be satisfied that there is a cause of action and that the proceedings are in the public interest, on behalf of any party (lessor or tenant) to a residential tenancy agreement. Under s 9(2), if the Commissioner considers it appropriate, the Commissioner may institute proceedings on behalf of a tenant under s 32(11) or assume the conduct of proceedings already commenced by the tenant under that section.

The Commissioner must not institute, defend or assume the conduct of such proceedings without first obtaining the written consent of the party (which once given is irrevocable, except with the consent of the Commissioner; and the written consent of the Minister (which may be given subject to such conditions as the Minister thinks fit).(12) If the residential tenancy agreement has been terminated, the Commissioner must not conduct proceedings unless a complaint was made to the Commissioner by a party to the agreement within three months after termination of the agreement.(13)

Subsections (4) to (9) provide further detail on proceedings instituted, defended or assumed by the Commissioner. Reference should be made to the legislation.

Under s 10, the Commissioner may delegate any of its functions under the Residential Tenancies Act 1987 (WA) (other than the power of delegation) to the holder of any specified office in the WA public service or to any specified officer of an agency or instrumentality of the Crown. The Commissioner is required to publish in the Gazette a notice of such delegation.

11. Protection of officers
No liability shall attach to the Commissioner or any delegate of the Commissioner, or any officer of the Department for any act or omission by the Commissioner, the delegate, or the officer in good faith and in the performance or purported performance of the functions of the Commissioner or the Department under this Act.

Information that is officially obtained under the Residential Tenancies Act 1987 (WA) must be kept confidential. Under s 11A(1) a person who misuses information concerning the affairs of a person obtained by reason of any function that person had, or at any time had, in the administration of the Residential Tenancies Act 1987 (WA) commits an offence subject to a fine of up to $20 000.

Under s 11A(2):

(2) A person misuses information if it is, directly or indirectly, recorded, used, or disclosed to another person, other than —

(d) in a manner that could not reasonably be expected to lead to the identification of any person to whom the information refers; or

(e) with the consent of the person to whom the information relates, or each of them if there is more than one.

Section 61 and Part 6 of the Fair Trading Act 2010 (WA) apply to the Residential Tenancies Act 1987 (WA).(14) These provisions deal with powers of investigation and enforcement. Reference should be made to the legislation itself for further detail.

1.3.3 Review of the Residential Tenancies Act 1987 (WA)

Statutory review of the Residential Tenancies Act 1987 (WA) is required under s 90 of the Residential Tenancies Act 1987 (WA). Section 90(1) states that the Minister must ‘carry out, or cause to be carried out, a review of the operation of this Act as soon as practicable after the expiration of 5 years from the coming into operation of Part 3 of the Real Estate Legislation Amendment Act 1995 [on 1 July 1996].’ Under s 90(2), the Minister was required to prepare a report of the review, and as soon as practicable after preparation lay the report before each House of Parliament.

The review began in late 2001 and the report was finalised in August 2002 and tabled in Parliament.(15) The report contained 183 recommendations. The review was concluded in 2008 when a policy report was prepared by the Department of Consumer and Employment Protection in response to these recommendations.(16)

The review led in part to the Residential Tenancies Amendment Bill 2011, which was introduced into the Legislative Council on 7 September 2011 by Hon Simon O’Brien MLC, Minister for Commerce.(17) The Residential Tenancies Amendment Act 2011 (WA) was passed by Parliament in November 2011, and received royal assent on 14 December 2011.

The next statutory review will commence in early 2019.

1.4 Scope/Extent of the Residential Tenancies Act 1987 (WA)

1.4.1 Crown Bound by the Act

This means that the State of WA is bound by the Residential Tenancies Act 1987 (WA).(19) Accordingly, the WA Housing Authority is bound by the Residential Tenancies Act 1987 (WA), subject to the exemptions contained in ss 5(2)(f), 6.

Section 5(2)(f) states that the Residential Tenancies Act 1987 (WA) does not apply to any residential tenancy agreement ‘where the agreement is entered into as lessor, whether generally or in prescribed circumstances, by any prescribed person or agency being a person or agency that is acting on behalf of the Crown’. No person or agency has been prescribed, and so no residential tenancy agreements are exempt under this provision.

1.4.2 Application of the Residential Tenancies Act 1987 (WA)

Section 5(1) of the Residential Tenancies Act 1987 (WA) states:

‘Subject to this section and sections 6 and 7, this Act applies to any residential tenancy agreement entered into, renewed, extended, assigned or otherwise transferred after the commencement of this Act.’

The question of the status of residential tenancy agreements entered into before the commencement of the Residential Tenancies Act 1987 (WA) must surely be of largely academic interest, given the Residential Tenancies Act 1987 (WA) commenced about three decades ago. Nevertheless, there must be some such agreements, perhaps most commonly periodic tenancies with the Housing Authority's predecessors as the original lessor.

Under s 7, where a periodic residential tenancy agreement was entered into before commencement of the Residential Tenancies Act 1987 (WA) on 1 October 1989 and continues after this date, the Residential Tenancies Act 1987 (WA), subject to any other provision of the Act, applies to the agreement on and from the first day after 1 October 1989 on which rent is payable under the agreement.(22)

The wording of s 7 is limited to periodic tenancies and does not extend to the situation where a tenant holds over beyond the expiry of a fixed-term agreement entered into before the Residential Tenancies Act 1987 (WA) commenced.(23) There must be very few, if any, such tenancies still in existence. Bradbrook, Mac Callum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia state that whether the Residential Tenancies Act 1987 (WA) applies to this situation will depend on the meaning of the term ‘entered into’. On the one hand it can be construed narrowly as a positive action and would not include overholding tenancies,(24) but on the other hand it could be construed broadly and include overholding tenancies on the grounds ‘that they are entered into by implication of law.’ They submit that, in the absence of authority, the broader construction of ‘entered into’ is correct, so that the Residential Tenancies Act 1987 (WA) applies to overholding tenancies entered into prior to the commencement of the Residential Tenancies Act 1987 (WA).(25)

In the case of periodic tenancy agreements entered into prior to the commencement of the Residential Tenancies Act 1987 (WA), proceedings and processes commenced before 1 October 1989 could continue as if the Residential Tenancies Act 1987 (WA) had not come into operation. Specifically:

any proceedings that were commenced before the application of the Residential Tenancies Act 1987 (WA) could be continued and completed as if the Residential Tenancies Act 1987 (WA) had not come into operation;(26)

any notice to quit given before the Residential Tenancies Act 1987 (WA) applied had effect and could be enforced as if the Residential Tenancies Act 1987 (WA) had not come into operation;(27) and

any process commenced to increase rent could be continued and completed and was required to have effect to increase the rent as if the Residential Tenancies Act 1987 (WA) had not come into operation, but subject to any order for a rent reduction under s 32.(28)

Note that proceedings could be brought subject to and in accordance with the Residential Tenancies Act 1987 (WA) in respect of any cause of action that arose before 1 October 1989, not being a cause of action subject to proceedings at the time of application of the Residential Tenancies Act 1987 (WA).(29)

Further, no civil or criminal liability would attach by virtue of application of the Residential Tenancies Act 1987 (WA) to the periodic tenancy agreement in respect of any act or omission before application of the Residential Tenancies Act 1987 (WA).(30)

If the tenant paid a security bond prior to 1 October 1989 and the Residential Tenancies Act 1987 (WA) subsequently became applicable to the residential tenancy agreement under s 5(1), the lessor was required to cause the security bond to be paid to the bond administrator not later than 21 days after the Residential Tenancies Act 1987 (WA) became applicable to the residential tenancy agreement.(31) Any amount paid to the bond administrator must be credited to the Rental Accommodation Account and is taken to have been paid to the bond administrator in accordance with Schedule 1 clause 5A (under s 29(4)(b)).(32) Unlike tenancies entered into after the commencement of the Residential Tenancies Act 1987 (WA), the lessor is not required to comply with s 29(4) by giving a bond receipt to the tenant upon payment of the bond and by lodging a record of payment with the bond administrator.(33)

1.5 Exclusions

1.5.1 Agreements to which the Residential Tenancies Act 1987 (WA) does not Apply

Under s 5(2), the Residential Tenancies Act 1987 (WA) does not apply to any of the following agreements:

(a) where the tenant is a party to an agreement for the sale and purchase of the premises, unless the period of the tenancy is one month or longer;

(b) where the agreement arises under a mortgage in respect of the premises;

(ii) the premises comprising the group are let by the company to persons who jointly have a controlling interest in the company;

(d) where the tenant is a boarder or lodger;

(e) where the agreement is bona fide entered into for the purpose of conferring on a person a right to occupy premises for a holiday;

(f) where the agreement is entered into as lessor, whether generally or in prescribed circumstances, by any prescribed person or agency being a person or agency that is acting on behalf of the Crown;

(g) where the agreement is a prescribed agreement, or is an agreement of a prescribed class.

Further, the Residential Tenancies Act 1987 (WA) does not apply to tenancies of commercial (as opposed to residential) premises. In WA, most retail shop leases are covered by the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA). However, in some cases premises may be let for both residential and business purposes. In these circumstances, the Residential Tenancies Act 1987 (WA) may still apply, however, it will depend on the facts of each individual case. For further discussion, see 2.8.1.3 (Commercial and Business Use of Premises).

1.5.1.1 An Agreement for Sale or Mortgage over the Premises (ss 5(2)(a)—(b))

Under s 5(2)(a), the Residential Tenancies Act 1987 (WA) does not apply where the tenant is a party to an agreement for the sale and purchase of the premises for a tenancy of less than one month. Under s 5(2)(b), the Residential Tenancies Act 1987 (WA) does not apply where the agreement arises under a mortgage over the premises.(34) According to Bradbrook, Mac Callum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia, the rationale for excluding these types of agreements ‘is presumably, first that there is no intention to let premises for the purpose of a residence, and secondly, that the Act appears to be designed to limit the availability of the remedies under the Act to parties whose sole relationship is that of landlord and tenant.’(35) The Residential Tenancies Act 1987 (WA) differs from the now-repealed South Australian Residential Tenancies Act 1978 (SA), because in WA the Act can still apply if the agreement is for a term of one month or longer even though there is an agreement for sale and purchase of the premises.

1.5.1.2 Boarders and Lodgers (s 5(2)(d))

The Residential Tenancies Act 1987 (WA) does not apply to boarders and lodgers, and parties are required to rely on common law principles instead. Boarders and lodgers are discussed in more detail at 12.1.10 (Boarders and Lodgers).

1.5.1.3 Holiday Agreements (s 5(2)(e))

The Residential Tenancies Act 1987 (WA) does not apply to a residential tenancy agreement genuinely entered into for holiday purposes.

Section 5(2)(e) states that the Residential Tenancies Act 1987 (WA) does not apply to a residential tenancy agreement ‘where the agreement is bona fide entered into for the purpose of conferring on a person a right to occupy premises for a holiday’. Section 5(4) provides that agreements for three months or longer are deemed, in the absence of proof to the contrary, not to be holiday agreements:

For the purposes of subsection (2)(e), an agreement conferring a right to occupy premises for a fixed term of 3 months or longer shall be deemed, in the absence of proof to the contrary, not to have been entered into bona fide for the purpose of conferring a right to occupy the premises for a holiday.

‘Holiday’ is not defined in the Residential Tenancies Act 1987 (WA). According to the majority in Re Glynn; Ex Parte Royle & Ors(36) ‘holiday’ is not confined to short-stay or one-off holidays, and the term ‘holiday’ is not confined to the singular and can include ‘holidays’ in the plural.(37) Section 5(4) contemplates that holidays can exceed three months. This means that the agreement could be for a broader purpose than just a holiday – this was the case in Re Glynn where the premises were also used for the ancillary purpose of storing equipment and for making improvements to the premises.(38)

As to s 5(2)(e), the subjective intention of the parties is relevant to determining the purpose of the agreement. McKechnie J (with whom Murray J agreed) of the majority in Re Glynn sets this out in more detail:

It is permissible to look at the subjective intention of the parties to determine the purpose of the agreement. The mere terms of the agreement while important, do not conclusively determine the purpose of the agreement: Buchmann v May [1978] 2 All ER 993. Regard must be had to other factors. This is clear by the use of the expression "bona fide". The honesty of an agreement must be judged by consideration of the overall circumstances. The section invites this consideration. A written agreement may apparently be entered into for holiday purposes. However, it may not be bona fide for that purpose because the intention of the parties may be a different purpose, that of long term accommodation. The words bona fide govern the whole of the words which follow. The Residential Tenancies Act is not to be evaded by a merely colourable use of words which do not correspond with what is really provided: see Palser v Grinling [1948] AC 291 per Lord Simon at 310 in a similar context to the Residential Tenancies Act. The agreement in a particular case may, or may not, of itself indicate the purpose. However, the surrounding circumstances may clearly indicate the purpose. The focus of attention is not the purpose of the agreement, but the purpose of entry into the agreement. The purpose must be the dominant or principal purpose. This is a question of fact in each case. The Residential Tenancies Act s 5(4) is in effect a rebuttable statement of fact as to the bona fides of the agreement.(39)

As to s5(4), ‘[i]t does not matter whether the lessor produces proof to the contrary or whether proof to the contrary can be found within other evidence, so long as there is evidence providing proof to the contrary.’(40) Proof to the contrary only requires some evidence that the principal purpose is that of holiday premises, even if they are for a fixed term longer than three months.(41) If proof to the contrary exists, then the Residential Tenancies Act 1987 (WA) will not apply.

In Quinlan v Nottingham the South Australian Residential Tenancies Tribunal (SARTT)(42) found that the agreement was subject to the Act as it was entered into ‘for many reasons and not genuinely for the purpose of a holiday.’(43) The tenants’ purposes here were to visit family and friends, ensure their son was well, to look at investment property and to speak to their bank about investments, to escape the English winter whilst renovations were being conducted on their London home and to give one of the tenants a chance to write a book without distraction.

1.5.1.4 Agreement Entered into by Prescribed Person or Agency Acting on Behalf of the Crown (s 5(2)(f))

The Residential Tenancies Act 1987 (WA) does not apply to leases or licences granted or issued under s 32(1)—(2), 38(1), 41A(1), 43, 45A(1), 45B(1), 47(4), 53, 86, 116, 117 or Part VI of the Land Act 1933 (WA)(44), or under the War Service Land Settlement Scheme Act 1954 (WA).(45)

The Residential Tenancies Act 1987 (WA) does not apply, where the lessor is the Minister for Lands, to any leases or licences granted or issued under section 47—48 , 79—80, 85 or Part 7 of the Land Administration Act 1997 (WA).(46)

1.5.1.5 Prescribed Premises (s 5(3)(e))

Under s 5(3)(e), the Residential Tenancies Act 1987 (WA) does not apply to ‘any prescribed premises or premises of a prescribed class.’

To date, the Residential Tenancies Regulations 1989 (WA) do not list any prescribed premises or class of premises.

1.5.1.6 Prescribed Agreements (s 5(2)(g))

The Residential Tenancies Act 1987 (WA) does not apply to prescribed agreements or agreements of a prescribed class.(47)

Prescribed agreements are set out in regs 3 – 5 of the Residential Tenancies Regulations 1989 (WA) as follows:

any residential tenancy agreement in respect of premises in a ‘retirement village’ as defined in the Retirement Villages Act 1992 (WA);(48) For further discussion of retirement villages, see 12.1.9.

certain agreements between a local government management body or State Government agency and occupants of coastal shacks;(49) and

a residential tenancy agreement entered into in pursuance of a direction to lease under s 33(3)(a) of the Land Act 1933 (WA).(50) This exemption involves the lease of reserves and is discussed in detail below.

Memorandum on the exception under regulation 5(3) of the Residential Tenancies Regulations 1989 (RT Regs)

What is the scope of r 5(3) of the RT Regs, and how do we know if a residential tenancy agreement is caught by it, and therefore exempted from the RT Act?

The Residential Tenancies Act 1987 ("RT Act") does not apply to any residential tenancy agreement "where the agreement is a prescribed agreement" (RT Act s 5(2)(g)).

"A residential tenancy agreement entered into in pursuance of a direction to lease given under section 33(3)(a) of the Land Act 1933(51) ["Land Act 1933"] is a prescribed agreement for the purposes of section 5(2)(g) of the Act" (RT Regs r 5(3))."

(2) The transitional, savings and validation provisions set out in Schedule 2 have effect in relation to the Land Act 1933.

(3) A reference in a written law or a book, document or writing to the Land Act 1933 is, unless the contrary intention appears or is otherwise provided under this Act, to be construed as if that reference were a reference to this Act.

Schedule 2 clause 16 (2b) of the LAA Act 1997 reads:

Any lease granted in compliance with a direction referred to in
section 33(3)(a) of the repealed Act and subsisting immediately
before the appointed day continues to subsist subject to this Act, and
is taken to have so continued to subsist on and from the appointed
day, as if that lease were a lease granted under section 47 of this Act.

How do we know if a particular residential tenancy agreement is one which has been entered into in pursuance of a direction to lease under section 33(3)(a) of the Land Act 1933?

First we have to bear in mind that the reference to a "direction to lease under section 33 (3) (a) of the Land Act 1933" in r 5(3) of the RT Regs encompasses a lease under s 47 of the LAA Act 1997, since the commencement of the LAA 1997 on 30 March 1998. This means that we have to know something about both the repealed LA Act 1933, and the current LAA 1997.

The Land Act 1933 s 33 (3)(a) was concerned with reserves. It gave the Governor the power to direct, "by Order", that any "land" be leased for "the designated purpose" to a person, where:

"land" was "land reserved under the Act; and
"the designated purpose" was the purpose for which land was reserved under the Act and any purpose ancillary and beneficial to that purpose. [see s 33 (1)]

Land Act 1933 s 33 (3a) [Note: "(3a), NOT (3)(a), which precedes it] gives the person to whom the land is leased the power to "sublet, for the designated purpose, the whole or part of the land […]".

Remember under the Interpretation Act 1984, s 5, "person […] includes a public body, company, or association or body of persons, corporate or unincorporate".

The starting point is to find out if the sublet premises form part of a reserve. The sublease itself may specify that the premises themselves form part of a reserve. If it does then it ought to sufficiently identify the reserve, by number, lot and common name. For example:

"Reserve No. 17586 (Wyalkatchem Lot 148)"

The next step is then to find if there is a s 33(3)(a) order under the Land Act 1933, or an order under s 46 (3) of the LA Act 1997. Search the Government Gazettes at the Department of the Premier and Cabinet for the reserve number and see if there is an order in respect of the same land. If there is, then the reg. 5 exemption will apply, to the lease mentioned in the order.

Note RT Agreements which are exempted under reg. 5 would seem to be exceedingly rare (in fact it is possible that they are so rare that none actually exist). We have searched all the Government Gazettes since 30 March 1998 for the word "Administration" and checked them manually for any orders under s 46 of the LA Act 1997, and found no such orders.

We came across a few Land Act 1933 orders giving a direction to lease, but none of the resultant leases were capable of being Residential Tenancy Agreements, e.g.:

(a) A lease for 999 years to the Silver Chain District and Bush Nursing Association to be held in trust for the purpose of Hospital (Rest Home);

(b) A lease for a term of one year and thereafter from year to year to the Commonwealth of Australia to be held in trust for the purpose of a rifle range;

(d) A lease of 99 years to the South of Perth Yacht Club (Inc.) to be held in trust for the purpose of the "Use and Requirements of the South of Perth Yacht Club and Free Public Pedestrian Access";

(e) A lease of 99 years to the Churches of Christ Federal Aborigines Mission Board (Incorporated) to be held in trust for the purpose of "Native Mission".

Conclusion: There is a theoretical possibility that a residential tenancy agreement could exist which fell within the reg. 5(3) exemption, but it seems very unlikely that one could actually exist.

1.5.2 Premises to which the Residential Tenancies Act 1987 (WA) does not apply

Under s 5(3), the Residential Tenancies Act 1987 (WA) does not apply to any of the following premises:

(a) any part of a hotel or motel;

(b) accommodation for students provided —
(i) by an educational institution; or
(ii) by an entity, other than the educational institution, if the accommodation is provided other than for the purpose of making a profit,
unless the accommodation is prescribed, or is of a class prescribed, for the purposes of this paragraph;

48. I was referred to various dictionary definitions of the words “hotel”, “motel”, “inn”, “hostel” and “boarding house”. I do not propose to refer to all of the entries to which I was taken. The dictionary definitions which I think most relevant may be found in the Macquarie Dictionary 5th Edition (Macquarie), the Oxford English Dictionary 2nd and 3rd Editions (OED) and the Shorter Oxford English Dictionary 5th Edition (SOED). They include:

Hotel

a building in which accommodation and food, and alcoholic drinks are available. (Macquarie)

building or establishment where travellers or tourists are provided with overnight accommodation, meals and other services. (OED)

an establishment, esp. of a comfortable or luxurious kind, where paying visitors are provided with accommodation, meals and other services. (SOED)

Motel

a roadside hotel which provides accommodation for travellers in self-contained, serviced units, with parking for their vehicles. (Macquarie)

51. There are a number of features that distinguish hotels and motels from some other types of establishment that provide accommodation to guests, such as that provided at the Urbanest premises.

52. First, hotels and motels provide not only accommodation to their guests but also at least some meals in which guests may choose to partake. Consequently, a hotel or motel will usually include a kitchen where meals are prepared by the proprietor or the proprietor’s employees or contractors for consumption by guests. And it will usually include a restaurant or dining room for guests where such meals may be consumed.

53. Secondly, the guest rooms in a hotel and a motel are invariably furnished, and always include a bed and some living space (usually with one or more chairs and a table at which to eat or work) and have an adjoining separate bathroom or ensuite. Linen and towels are usually supplied. The rooms are usually cleaned and serviced by staff on a daily basis, with the costs of such services being included in the tariff.

54. Thirdly, guests of hotels and motels primarily consist of travellers who ordinarily have their principal place of residence elsewhere and who need or desire accommodation while away for business or pleasure.

55. Fourthly, guests of hotels and motels do not usually enjoy any exclusive right to occupy any particular part of the premises in the same way as does a tenant to whom a house or apartment is let. Nor does a guest of a hotel or motel usually let a room for a term. Leaving aside cancellation fees, he or she is usually charged for a room in accordance with a daily rate multiplied by the number of days of occupancy.

56. The last two propositions require some qualification in the case of what are sometimes referred to as residential or private hotels. These types of establishments would often include long-term residents who were not travellers or visitors in any relevant sense, but for whom the hotel was a permanent place of residence.

57. There are various other features or attributes of hotels and motels that should also be mentioned. Hotels and motels usually have a reception desk to handle the requirements of both management and guests, particularly when guests check in or check out of the establishment. They may also offer concierge services either at the reception desk or at a separate concierge’s desk. As I have mentioned, the applicants place particular reliance upon the fact that the Urbanest premises includes a reception desk that provides such services.

58. The relevant dictionary definitions make clear that a motel is a particular type of hotel that primarily caters to the needs of motorists seeking roadside accommodation. That is a basic characteristic of a motel which is lacking in the case of the Urbanest premises. In fact, the House Rules make it clear that the Urbanest premises has no parking spaces for cars or motorbikes available for residents.

59. While the Urbanest premises has more similarity to a hotel than a motel, it is unlike a hotel in a number of significant respects.

60. First, most of the accommodation facilities within the Urbanest premises consist of shared apartments which are configured in a way that would be most out of place in a hotel. Accommodation in a hotel is not normally shared in this way.

61. Secondly, there is no kitchen (apart from those within the apartments), restaurant or dining room on the premises for the preparation or service of meals to guests as is usually found in a hotel.

62. Thirdly, residents of the Urbanest premises are responsible for the cleanliness of their own rooms, which are not serviced in the way one would usually expect in a hotel. While the evidence indicates that cleaning services are available at additional cost, none of Mr O’Leary, Ms Guiloff or Mr Chairatna appear to have taken up that option and there was no evidence to indicate the extent to which other residents may have done so. Still, the availability of such services, and the fact that they may be arranged through the reception desk located on the premises, distinguishes the Urbanest premises from most blocks of residential apartments (excluding what are commonly referred to as serviced apartments) where a resident would be left to make his or her own arrangements for the cleaning of his or her apartment.

63. Fourthly, residents or customers of the Urbanest premises enter into agreements with USLT that more closely resemble tenancy agreements than agreements which one would expect to see between a proprietor of a hotel and a guest. These agreements provide for the completion of inspection reports before or shortly after occupancy begins, and also provide (at least in some situations) for the payment of a bond. They also provide – consistently with the requirements of the Qld Act – that the proprietor must take reasonable steps to ensure that a resident is given quiet enjoyment of his or her room and common areas.

64. Fifthly, residents or customers of the Urbanest premises are primarily students rather than visitors or travellers. The accommodation is much more likely to be used by them as their place of residence during the extended periods in which they are engaged in study at nearby educational institutions. The configurations of the rooms and common areas include dedicated study areas that one would not usually expect to find in a hotel.

In Makucha v Henaford Pty Ltd & Anor, White J of the Supreme Court of NSW considered the meaning of the word ‘hotel’ and stated that it ‘is not a technical term with connotations derived from the common law’ and that the meaning of the term has changed over time.(54) He cited the first definition of ‘hotel’ in the Macquarie Dictionary as ‘[a] building in which accommodation and food and sometimes other facilities are available’.(55) White J found that the premises in this case satisfied that definition because some food was available, they were marketed to the travelling public generally (rather than being limited to the choice of occupancy in a guesthouse or boarding house), linen was supplied, and the rooms were serviced (except in the case of longer-term residents).(56)

1.5.2.2 Student Accommodation (s 5(3)(b))

The Residential Tenancies Act 1987 (WA) does not apply to accommodation for students provided by an educational institution or a not-for-profit providing accommodation for students, unless the accommodation in prescribed in the regulations.

The student accommodation at St Thomas More College (on Mounts Bay Road, Crawley) provided in the building on the western side and the southern-most building of the College is the only accommodation currently prescribed for the purposes of s 5(3)(b).(57) Thus this particular accommodation (student apartments and one-bedroom apartments) is subject to the Residential Tenancies Act 1987 (WA).

‘Educational institution’ is not defined in the Residential Tenancies Act 1987 (WA), ‘but would surely include all institutions providing traditional forms of primary, secondary or tertiary academic education. Thus halls of residence located in schools and universities are clearly within the scope of the exception.’(58) An ‘educational institution’ could be defined as ‘an institution the primary activities of which are devoted to education, in the sense of imparting knowledge or assisting and guiding the development of body or mind’.(59) The phrase ‘[i]mparting knowledge’ extends beyond lectures and tutorials, to research and storing knowledge, and ‘the development of body or mind’ extends to the creation of a learning environment – eg facilitating a student’s personal work through homework, research papers and exam revision.(60)

Bradbrook, Mac Callum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia, raise the more difficult question of ‘whether non-academic educational institutions, such as schools of yoga and businesses where apprentices are trained, are also included within the exception.’(61) They go on to cite the decision of the House of Lords inInland Revenue Commissioner v McMullen (62) which interpreted ‘education’ and ‘educational’ very broadly. The House of Lords held that the charitable trust in this case was valid as being for the advancement of education, and that ‘education’ in s 4 of the Charities Act 1960 (UK) ‘includes the totality of the process of education, which consists of a balance between spiritual, moral, mental and physical elements; it is not limited to formal instruction.’(63)

(ca) any part of a hospital or nursing home;
…
(d) any premises used to provide residential care to approved care recipients by an approved provider as defined in the Aged Care Act 1997 (Commonwealth);

Hospital: The term ‘hospital’ is not defined in the Residential Tenancies Act 1987 (WA). Bradbrook, Mac Callum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia submit that the term should be given a broader meaning than its usual usage in Australia.(64) They cite the case of Tanner v Marquis Jackson(65) as authority for this. In this case, Blackburn J stated:

I am inclined to think that in everyday speech, in Australia at present, the word ‘hospital’ primarily suggests a place to which a person resorts with the intention of being treated for a curable malady or injury…But it is one thing to say what the word primarily suggests, and quite another to decide that a sense lying outside the scope of such primary sense cannot be included for the purpose of the construction of a statute…If it be said that the appellant is not in a hospital because she receives there no more than she could receive in her own home, at the hands of relations or friends endowed with unlimited patience, time, and devotion, the answer may be that it does not follow that the institution which provides this is not a hospital. It does not seem to me a misuse of language to say that the appellant is a sick person who is obliged to live in a hospital because she cannot get the care she needs at home.(66)

Blackburn J held that an institution which provides constant attention to an injured person, but no curative or continuous treatment, is still a ‘hospital’.(67)

Nursing home: Like ‘hospital’, the term ‘nursing home’ is not defined in the Residential Tenancies Act 1987 (WA). The Macquarie Dictionary defines ‘nursing home’ as ‘a nursing residence equipped for the care of patients who have chronic or terminal diseases, or who are disabled in some way.’ Bradbrook, Mac Callum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia submit that ‘nursing home’ includes convalescent homes and rehabilitation homes.(68)

Residential care: Premises used to provide residential care under the Aged Care Act 1997 (Commonwealth) will not come under the Residential Tenancies Act 1987 (WA), if the residential care is provided to ‘approved care recipients’ by an ‘approved provider’.

'Residential care' is defined in s 41.3 of the Aged Care Act 1997 (Cth) as follows:

An ‘approved care recipient’ is a person who has been approved as a care recipient under Part 2.3 of the Aged Care Act 1997 (Cth). In the case of residential care facilities, a person is eligible to be approved if they are eligible to receive residential care.(69) Under s 21.2, a person is eligible to receive residential care if:

(a) the person has physical, medical, social or psychological needs that require the provision of care; and

(b) those needs can be met appropriately through residential care services; and

Part 2.3 Division 22 sets out how a person can become approved as a care recipient, and reference should be made to the legislation itself for further detail.

An ‘approved provider’ is ‘a person or body in respect of which an approval under Part 2.1 is in force, and, to the extent provided for in section 8.6, includes any State or Territory, authority of a State or Territory or local government authority.’(70)

1.5.2.4 Premises Used for a Club (s 5(3)

(c))

Under s 5(3)c), the Residential Tenancies Act 1987 (WA) does not apply to any premises used for the purposes of a club.

The term ‘club’ is not defined in the Residential Tenancies Act 1987 (WA). Griffith CJ in Bohemians Club v Acting Federal Commissioner of Taxation defined ‘club’ as ‘a voluntary association of persons who agree to maintain for their common personal benefit, and not for profit, an establishment the expenses of which are to be defrayed by equal contributions of an amount estimated to be sufficient to defray those expenses, and the management of which is entrusted to a committee chosen by themselves.’(71)

Starke J in Watson v J & AG Johnson Ltd(72) stated that a ‘club is not a juristic entity: it is not even a partnership, it is simply a voluntary association of a number of persons for the purpose of affording its members and their friends facilities for social intercourse and recreation, and the usual privileges, advantages and accommodation of a club.'

The meaning of ‘club’ was also discussed by the High Court in Bennett v Cooper(73) which was an appeal from the Supreme Court of WA dealing with the supply of liquor on the premises of an unregistered club. Latham CJ stated:

There is no precise legal definition of the word "club." The description of a club contained in Wertheimer on Clubs applies to most clubs: - "A club may be defined to be a voluntary association of a number of persons meeting together for purposes mainly social, each contributing a certain sum either to a common fund for the benefit of the members or to a particular individual for his own benefit." But it is possible for a voluntary association to be a club though there are no pecuniary contributions or the contributions are uncertain in amount. A club may be a members' club where contributions are paid to a common fund, or a proprietary club where they are paid to an individual or a corporation, and a club may be unincorporated or incorporated. Clubs are voluntary, non-profit making associations but they vary almost indefinitely in other characteristics. Some clubs, for example dining clubs, may have no property at all. They may meet simply for the purpose of enabling the members to dine together. A suburban football club may have no property beyond a couple of footballs and a writing pad. Other clubs may have premises to which members have a right of entry only for particular purposes on particular occasions, e.g. racing clubs and metropolitan cricket and football clubs.(74)

”Club” is a word possessing a very wide and flexible meaning…Among the meanings of the word given in the Oxford English Dictionary there is one, the fifteenth…as follows - An association of persons (admittance into which is usually guarded by ballot), formed mainly for social purposes and having a building (or part of one) appropriated to the exclusive use of the members and always open to them as a place of resort or in some cases of temporary residence: the club may be political, literary, military &c., according to the aims and occupations of its members, but its main feature is to provide a place of resort for social intercourse and entertainment. No doubt it is not a necessary attribute of such a body that the club house should be always available to the members and it may be that in other respects this definition is too rigid. But it indicates the general conception which to me appears to lie within the use of the word by the enactment.’

(5) Subject to subsection (6), this Act applies to a site at a caravan park, within the meaning of the Caravan Parks and Camping Grounds Act 1995 (whether or not a caravan, within the meaning of that Act, is situated on that site) as if the site was residential premises for the purposes of this Act.

(6) This Act does not apply to a site at a residential park, within the meaning of the Residential Parks (Long-stay Tenants) Act 2006, other than in relation to a residential tenancy agreement —

(a) under which a person has a right to occupy such a site; and

(b) that is an existing fixed term long-stay agreement made in writing, to which the Residential Parks (Long-stay Tenants) Act 2006 does not apply in accordance with section 6(4) of that Act.

For further discussion on Residential parks (long stay tenants) see 12.1.7, and for further discussion of caravan parks and camping grounds see 12.1.8.

1.5.4 Exemption of Tenancy Agreement or Premises from Provision of Act (s 84)

Section 84 of the Residential Tenancies Act 1987 (WA) empowers the court to exempt a residential tenancy agreement or premises from a provision of the Residential Tenancies Act 1987 (WA) if the court considers it necessary or desirable to do so. Section 84 states in full:

A competent court may, upon application by any person, if the court considers it necessary or desirable in the circumstances, order that a provision of this Act shall not apply to or in relation to any residential tenancy agreement or proposed residential tenancy agreement or any premises or shall apply in a modified manner specified in the order and the order shall have effect accordingly.

It is not known how often or in what circumstances the power is exercised in WA.

In relation to the equivalent provision (s 91)(77) in the former South Australian Residential Tenancies Act 1978 (SA), Bradbrook, Mac Callum and Moore in Residential Tenancy Law and Practice: Victoria and South Australia state:

This power is surprisingly broad and amounts to a right to rewrite the legislation. According to the Registrar of the South Australian Tribunal [speaking in April 1981] [it] is frequently exercised by the members of the Tribunal. The legislation regulating the maximum amount of security deposits and the length of a notice of termination are often adjusted in individual cases by the Tribunal pursuant to s. 91.(78)

1.5.5 Modified Application of Act by Regulation (s 6)

The Governor has the power under s 6 to make regulations providing that a provision of the Residential Tenancies Act 1987 (WA) does not apply, or applies in a modified manner, ‘to, the following, or any combination of the following –

(a) any residential tenancy agreement or class of residential tenancy agreements; or

The effect of this is that the Residential Tenancies Act 1987 (WA) must always be read together with the Residential Tenancies Regulations 1987 (WA). That is especially so when the lessor is the Housing Authority, for many of the modified sections apply when that is the case.

Notes

1: No appeals are permitted from a residential tenancy decision made under the Residential Tenancies Act 1987 (WA): Residential Tenancies Act 1987 (WA) s 26(1). It is nevertheless possible to apply to the Supreme Court for a review order under s 36 of the Magistrates Court Act 2004 (WA), but only where there was a denial of natural justice or jurisdictional error: Residential Tenancies Act 1987 (WA) s 26(2). An appeal can be made to the District Court (under s 40 Magistrates Court (Civil Proceedings) Act 2004) against a decision of a Magistrate involving jurisdiction, rather than a decision on the substantive issues: Miller v Brown & Ors [2010] WADC 102 (2 July 2010) [20] – [22] (Davis DCJ). That might occur, for example, where a Magistrate wrongly dismisses an application on the grounds that the parties had a boarder/lodger agreement rather than a residential tenancy agreement.

2: The footnote to the long title states: ‘The provisions in this Act amending those Acts have been omitted under the Reprints Act 1984 s. 7(4)(f).’

7: Where 'Minister' means the Minister responsible for the administration of the Residential Tenancies Act 1987 (WA), currently the Minister for Commerce and Industrial Relations: see Interpretation Act 1984 (WA) s 12(a).

19: The ‘Crown’ is defined as ‘the Sovereign of the United Kingdom, Australia and Her other Realms and Territories, and Head of the Commonwealth and includes the predecessors and the heirs and successors of the Sovereign’: Interpretation Act 1984 (WA) s 5.

23: Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Limited, 1983) 91 [429].

24: The Residential Tenancies Act 1987 (WA) as passed did not contain s 76C which provides that fixed term tenancies which are not terminated before their expiry automatically become periodic tenancies. However the common law applied to create a periodic tenancy where a fixed term had expired, and the tenant paid rent which was accepted by the landlord.

25: Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Limited, 1983) 91 [429].

34: These subsections are apparently aimed at excluding tenancies which arise under attornment clauses from the Residential Tenancies Act 1987 (WA). An attornment clause purports to make the mortgagor or purchaser of land the tenant of the mortgagee or vendor. Its purpose is to give the mortgagee or vendor the remedies of a landlord – in particular that of distress (now long abolished) and access to the summary procedures to recover possession. See Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Limited, 1983) 96 [433].

35: Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Limited, 1983) 96 [433].

51: Under the Land Administration Act 1997 ["LA Act 1997"] s. 281(3), a reference in a written law to the Land Act 1933 is, unless the contrary intention appears, to be construed as if that reference were a reference to the Land Administration Act 1997. [footnote in the legislation itself]

58: Adrian J. Bradbrook, Susan V. Mac Callum and Anthony P. Moore, Residential Tenancy Law and Practice: Victoria and South Australia (The Law Book Company Limited, 1983) 97 [435]. Note the exception for apartments at St Thomas More College under the regulations.